Lesson # 233 (part one) • Ownerless Property It is accepted in Jewish law that a man can abandon things that belong to him, and they become ownerless. There are three classes of ownerless property. (1) where the object has never been owned; (2) property that the law deems to be ownerless; and (3) property declared by the owner to be ownerless. Examples of (1) are deserts, rivers, and streams on public lands and all that is found in them. There is authority that these areas are not ownerless in the Land of Israel when the tribes are on their allotted lands, but rather that these areas belong to the tribe where they are located. The governments may have laws affecting the ownership of such places, such as retaining ownership of them or permitting sub- divisions of the government to own them. Absent such laws, these areas and all that is found therein, such as trees, minerals, growth, fruits, fish, fowl, birds, animals, and the like, are ownerless. The reason is, that they have been ownerless since the creation of the world. Regarding fish in the seas and birds or beasts, the laws of ownership are as follows: (a) If Shimon catches fish in the seas or oceans or in rivers, or if he catches birds or any species of beasts, Shimon acquires ownership to them since they are owner- less. While Shimon should not catch these objects in property belonging to Levi, if he did catch them there, they belong to Shimon. (b) If the fish are in fisheries owned by Levi, or birds or animals are enclosed in enclosures (no matter how large) owned by Levi, they belong to Levi, and should Shimon catch them, he is a robber. (c) If Shimon takes fish from Levi's net while it is in the water, or if Shimon takes an animal from Levi's trap while it is yet in the forest, the object belongs to Shimon, although he has transgressed a decree of the Rabbis in the Talmud. While Levi cannot sue Shimon, because the decree of the Rabbis is to preserve peace, it is left for the judgments of Heaven to punish Shimon. Generally speaking, while Beth Din cannot enforce any payment, the person still is not free of his obligations to Heaven until he makes the appropriate payment. However, if the net or trap has a hollow shape like a vessel, the objects caught therein belong to Levi, and if Shimon takes them he is a robber. And Levi can sue Shimon in Beth Din to recover his loss. (d) Shimon sets a trap in Levi's field and the trap catches a wild bird or animal. It belongs to Shimon, although he does not have the right to place his trap there. However, if Levi stands within his field and declares that all animals or birds are acquired for Levi by his field, or Levi is able to catch them, then the animals or birds belong to Levi, and Shimon does not acquire the animals or birds in the trap. (e) If fish jump into Shimon's boat, he acquires ownership of the fish. (f) Levi, a poor person, lops olives off the top of an olive tree and they fall to the ground. Shimon, who is also a poor person, picks them up from the ground. Shimon is deemed a robber by Rabbinic enactment, although technically the olives are owner- less and do not belong to Levi since he did not take them into his hands to acquire them. However, had Levi taken the olives into his hands before he dropped them to the ground, Shimon, if he then took the olives, would be a robber. The difference between a robber under Torah law and a robber by Rabbinic enactment is that the former can be sued in Beth Din to recover the loss, while the latter cannot be sued in Beth Din to recover the loss. (2) If a proselyte dies without any heirs, all of his property is deemed ownerless. A person who converts to Judaism is deemed to be a newborn person without any legal relationship to any of his former relatives. Thus if the proselyte does not have a child with a Jewess conceived after he converts and starts a family, he has no heirs. Other examples of personal property that are deemed lost and ownerless are objects that are carried off by a raging river or tides into the ocean. The Talmud and the codes include the following case of an object being deemed ownerless. If Shimon picks fresh cress growing in Levi's flax field, it is not deemed robbery because the cress spoils the flax in the field and Levi is perfectly happy to have Shimon pick the cress. But if the cress is already dried then taking it is robbery; since whatever harm the cress will do to the flax is already done. If the cress in on the edge of the field, it is forbidden for Shimon to take it even if it is fresh. (3) A Jew or Gentile who is the owner of real property and/or personal property can declare his property to be ownerless if he complies with the procedures described herein. The owner's intent to make the object ownerless cannot be done by the owner solely in his mind. The declaration of abandoning the ownership of an object must be made by the owner (and not by an agent) in the presence of at least three people; two persons to be witness that the declaration was made, and the third person to be able to acquire the object. It cannot be made by the owner without anyone present. According to Torah law, the declaration could be made in the presence of only one witness, but the Rabbis of the Talmud, to publicize the event, decreed that the declaration of abandonment of owner- ship must be in the presence of three persons. In certain limited cases, where the purpose of the declaration is to prevent the owner from transgressing a Torah law, it is permitted to declare one's personal property abandoned without anyone else being present. The declaration must be unequivocal and unambiguous. A declaration of abandonment of ownership made in error or under duress is not effective. Reuven cannot limit the class of Jews who may acquire the abandoned ownerless object. He may not limit it to animals and not to humans; or to Gentiles and not to Jews; or to Jews and not to Gentiles; or to poor and not to rich; or to rich and not to poor. For example, if Reuven declared an object to be abandoned for the poor and not for the rich, even if a poor person performed an act of acquisition on the object, it does not belong to the poor person. Reuven may limit the time during which the abandonment of ownership is effective, and if Shimon performs an act of acquisition during such period, the object belongs to Shimon. Otherwise, ownership remains with Reuven. For example, Reuven, on Rosh Chodesh Sivan, declares in front of wit- nesses that ownership of the object is abandoned for the month of Sivan. Shimon performs an act of acquisition on the 15th of Sivan. Ownership of the object is with Shimon and does not cease and revert to Reuven after Sivan. If Shimon performs an act of acquisition on the 2nd of Tammuz, the object does not belong to him and remains with Reuven. Reuven may declare his object of personal property to be ownerless as of a future date. If the object of personal property is located on that future date in a place not belonging to Reuven, it is ownerless. Until that future date Reuven may rescind the declaration. There is a difference of opinion as to whether a declaration of abandonment of ownership made on the Shabbat is effective. The subject matter of this lesson is more fully discussed in volume VIII chapters 273 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat Emor Homepage]
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